THE ENVIRONMENTAL CRISIS OF THE 2003 IRAQ WAR: A MORAL OBLIGATION OR A MANDATORY MEASURE UNDER INTERNATIONAL TREATIES

The 2003 Iraq War has left a long-lasting detrimental impact on the lives of Iraqis. Aside from the highly destructive sectarian divide, political instability, and stunted economic development, both the United States and the Iraqi Governments have failed to address the environmental contamination that resulted from the military munitions used during the war.[2] This article focuses on the effects of that contamination, the reaction both governmental systems have taken, how these actions constitute violations of various international treaties, and also calls for action.

Studies have linked the highly radioactive environmental contaminates left behind by the war to dramatically increasing rates of cancer, birth defects, and other illnesses—including respiratory and neurological ones—in all affected areas.[3] Iraqi women and children continue to live in these hazardous conditions and are constantly exposed to these left-over toxic munitions and carcinogenic waste.[4] The failure of the U.S. and Iraqi Governments to take sufficient measures to decontaminate the affected areas, and to provide healthcare services for affected persons constitutes a blatant violation of a number of international treaties, including, but not limited to: the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),[5] the Convention on the Rights of Persons with Disabilities (CRPD),[6] and the Convention on the Rights of the Child.[7]

I. Violation of International Treaties

Under these international treaties, the U.S. remains directly responsible for the human rights violations that took place during, or as result of, the Iraq War.[8] The Human Rights Committee explained in General Comment 31 on the International Covenant on Civil and Political Rights that “the enjoyment of Covenant Rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality . . . who may find themselves in the territory or subject to the jurisdiction of the State Party.”[9] The Committee added further that “[t]his principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory.”[10] Additionally, the State Party’s responsibility extends to persons or places beyond the State Party’s control when the State Party was a “causal link” in the chain in the violation and if the State Party had knowledge and foresaw the violation.[11] From this, it is evident that both the U.S. and Iraq have violated these treaties and have a responsibility to remedy this issue.

II. The Beginning of the Health Effects of the Iraq War

The root of this problem seems to stem from the materials contained within the weapons used during the actual war itself. During the decade-long Iraq war, the U.S. reportedly used weapons containing depleted uranium,[12] white phosphorous,[13] napalm,[14] and cluster munitions.[15] In fact, estimates show that the U.S. and the U.K. released between 100 and 200 tons of depleted uranium in one year of combat in Iraq.[16] The U.S. military also used ‘burn pits’ to bury and dispose of toxic military waste—including munitions, weapons, fuels, biomedical waste, and other toxic materials.[17] Dozens of Iraqi villages, including Hawija, Kabiba, Hamduniyya, Abu al-Sakhra, al-‘Atshana, and Hor al-Sufun, became backyard dumping grounds polluted with radiation and other environmental contaminants emitted from left-over munitions of nearby U.S. military bases.[18] These dumping sites continue to produce substantial health hazards leaving disabled women and children extremely vulnerable, at all levels.[19]

In an attempt to address the issue domestically, in 2009, a group of veterans suffering from the health effects of the exposure to burn pits sued private military contractors.[20] In February 2013, a trial court dismissed the consolidated cases on the grounds that the issue raised a “political question.”[21] However, the Fourth Circuit has since reversed and vacated that holding, and the case is back before the trial court.[22] On September 24th, 2014, the Center for Constitutional Rights (CCR), on behalf of itself and Iraq Veterans Against the War (IVAW), submitted a Freedom of Information Act (FOIA) request to the Department of Defense and the State Department “seeking the firing coordinates of weapons used in Iraq that contained depleted uranium.”[23]

The Iraqi Government is also responsible for taking all appropriate and necessary measures to alleviate the impact of these environmental contaminants. In their concluding observations to the Republic of Iraq, the CRC and CEDAW Committees noted with concern that a number of cities in Iraq are adversely impacted by “a high toxic level of lead and mercury contamination along with depleted uranium pollution,” which, in return has caused notably increased rates of infant mortality, cancer, miscarriages, and birth defects.[24]

III. The Failure to Clean Up Contaminated Sites

Despite pressure from various international non-governmental organizations and domestic working groups, both the U.S. and the Iraqi governments failed to take notable measures to decontaminate, or, at the very least, effectively examine contaminated civilian areas in Iraq.[25]

Two issues reflect both the U.S. and Iraqi Governments’ shortcomings in complying with the provisions of the international treaties: First, both Governments failed to take effective measures to clean up and eliminate the environmental contaminants in affected areas. Second, the absence of effective governmental measures to provide women and children with medical, physical, and psychological care, along with the other healthcare services necessary to meet their special needs demonstrate the urgency of the issue.

Under the articles of CEDAW, states have a duty to ensure that the environment is protected at the levels necessary to allow for the full exercise of peoples’ protected rights, and one of those rights includes access to safe and contamination-free environment and conditions. The CEDAW Committee establishes the State Parties’ responsibility to take all appropriate measures to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms.[26] A State Party’s failure to take all appropriate measures to help ensure the health and well-being of families, on the basis of equality with men,[27] and the right to the protection of health[28] and adequate living conditions—particularly in relation to housing, sanitation, and water supply, especially in rural areas[29]—constitutes a violation of CEDAW.

CRPD also obligates State Parties to “take all appropriate measures to ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the present Convention,”[30] and to “ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.”[31] Article 27 of the CRC requires State Parties to recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.[32]

The highly toxic weapons, along with the weaponry disposal burn pits used by the U.S. military, have exposed Iraqis to grave and unparalleled risks of illnesses.[33] Injuries from abandoned landmines and cluster munitions have resulted in disproportionately high numbers of physical and mental disabilities.[34]The Guardian reported on a study that examined the causes of the rising number of birth defects in the Iraqi city of Falluja. The study concluded that the genetic damage, which can affect generations, is caused by weaponry used in U.S. military assaults.[35]

All of these reports demonstrate the utter failure of the Iraq and American governments to clean up contaminated sites and its devastating effects. Yet that is not the only violation that was committed. They also failed to provide adequate care to address the resulting medical complications, which is a rapidly growing problem.

IV. The Failure to Provide Redress, Including Healthcare Services

Under CEDAW, State Parties have the obligation to provide women with adequate access to healthcare services. Failure to do so constitutes discrimination against women under the convention.[36] Article 12 of CEDAW requires State Parties to take all appropriate measures to eliminate discrimination against women in the field of healthcare.[37] Concerning women in rural areas, Article 14 requires States Parties to take “all appropriate measures to eliminate discrimination against [such] women in order to ensure that they participate in and benefit from rural development and, in particular . . . [the right] to have access to adequate healthcare facilities.”[38] This access includes “information, counseling and services in family planning.”[39]

CRPD also requires State Parties to recognize that “persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability.”[40] Additionally, Articles 23, 24, and 28 of CRC require States Parties to provide children, especially disabled children, with access to the highest standard of appropriate and affordable health and medical care services.[41]

However, the U.S. and Iraqi governments have failed to take appropriate measures to provide affected persons with adequate access to healthcare services. Women and children suffering from radiation sickness, cancer, birth defects and various disabilities are unable to find the healthcare and support services they need.[42]Women and children in rural Iraq, especially those who sustained disabilities as a result of environmental contamination, are in particular need of basic healthcare services.[43] In August 2011, the Organization of Women’s Freedom in Iraq (“OWFI”) released a report demonstrating how environmental contamination from U.S munitions dumping has affected numerous Iraqi women, men, and children in the town of Hawija, which has a population of 109,000:

[T]here is a generation of children who are suffering from Poliomyelitis paralysis and cases of brain damage or atrophy. 412 of these children and teenagers are registered patients in the health clinic, whereas the actual numbers exceed 600 cases of child disability. Cancer is also spreading like an epidemic among all age groups but especially among teenagers, who await their death as the Iraqi and U.S. governments make no efforts to provide treatment or medication.” . . . The number of disability and cancer cases increases in the villages that are closest to, or downwind of, the U.S. Army base, especially the villages Kabiba, Hamduniyya, Abu al-Sakhra, al-‘Atshana, and Hor al-Sufun. For example, Kabiba village has only 1400 residents, among whom 21 cases of cancer have been identified, three of whom have died while the others await their turn in the absence of treatment and medications.[44]

Falah Alwan, the President of the Federation of Workers Councils and Unions in Iraq (“FWCUI”), wrote about OWFI’s report on Hawija, “There are hundreds of people with illnesses, including cancer. People cannot afford proper medical treatment; FWCUI and OWFI are demanding that the weapons testing stops, that the site is cleaned up and that people are given access to the medical treatment they need.”[45]

A study conducted by Huda Al-Jasim for Bridging the Divide reveals that one out of every twenty-five Iraqi citizens is disabled due to the numerous wars.[46] In fact, Iraq has the highest percentage of persons with disabilities than any other country, many of which have developed disabilities as a result of contaminants produced by three consecutive wars.[47] Estimates suggest that more than ten percent of the entire population in Iraq suffers some kind of disability.[48] Despite these alarming numbers, the Iraqi government has not taken the appropriate measures to provide essential health services to disabled Iraqis, or to eradicate ground contamination. Disabled women and children and their families in Iraq have limited, if any, access to “healthcare and rehabilitation, education, skills training, and employment and economic opportunities.”[49] As a result, disabled Iraqis from “all sectors of society often find themselves confined to domestic settings.”[50] Moreover, many Iraqi women and children with disabilities live in rural or remote areas, seriously impeding their access to available services due to cost, lack of public transportation, and the absence of local treatment facilities.[51] Additionally, due to societal stigmas, “disabled Iraqis are often hidden away by their families,” further limiting their access to vital therapies and services.[52] Iraq’s public agencies and organizations for the disabled, including the Ministry of Health and the Ministry of Labor and Social Affairs, lack the technical capacity to provide the adequate services and advanced therapies required to meet the needs of disabled women and children.[53]Thus, the needs of Iraqis with disabilities are simply not being met.[54]

Conclusion

Provisions to insure that the rights of victims of international human rights law violations are remedied can be found in numerous international instruments. Examples of these include: Article 2 of the International Covenant on Civil and Political Rights,[55] Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination,[56] and Article 39 of the Convention on the Rights of the Child.[57]

The U.S. and Iraqi governments’ failure to address the devastating health effects of the war violate other international mechanisms, including but not limited to, Article 3 of the Hague Convention,[58] Article 91 of the Protocol Additional to the Geneva Conventions of 12 August 1949,[59] and the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977.[60]

Given the far-reaching and multi-generational human rights crisis resulting from the war, the Iraqi and U.S. governments should publicly acknowledge the legal and moral obligations they have to make reparations both as a matter of a war-making state’s international human rights obligations, and as a basic precept of international humanitarian law. They must meet their obligations and must immediately provide funding and research to combat the ongoing health impacts of war munitions on Iraqis, through remediation of toxic sites and the provision of health care. In conclusion, both governments must complete investigations and prosecutions of high-level officials for human rights violations including war crimes.

[1] Staff Attorney for the International Women’s Human Rights (IWHR) Clinic at the City University of New York (CUNY) School of Law. Thanks to Lisa Davis and Cassandra Atlas for their editorial contributions to this Article. The author would also like to thank Leah Todd from the Center for Constitutional Rights (CCR), not only for her incredible work around the issue, but also for taking the time to allow the author to interview her.

[8]See Human Rights Comm., General Comment No.31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, ¶ 10, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (Mar. 29, 2004) (interpreting obligations under the International Covenant on Civil and Political Rights).

[15]See, e.g., Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq 6 (2003), http://www.hrw.org/sites/default/ files/reports/usa1203.pdf [http://perma.cc/GMB6-WGYB] (reporting that official U.S. documents from 2003 show that the U.S. military used 10,782 cluster bombs that could hold at least 1.8 million submunitions).

[24] Comm. on the Elimination of Discrimination against Women, Concluding Observations on the Combined Fourth to Sixth Periodic Reports of Iraq, ¶ 42(b), U.N. Doc. CEDAW/C/IRQ/CO/4-6 (Mar. 10, 2014); Comm. on the Rights of the Child, Concluding Observations on the Combined Second to Fourth Periodic Reports of Iraq, ¶ 62, U.N. Doc. CRC/C/IRQ/CO/2-4 (Mar. 3, 2015).

[25]Pam Spees et al., Ctr. for Constitutional Rights, The War Is Not Over for Iraqi and U.S. Veterans: Seeking Accountability and Reparations for the United States’ Illegal War and Its Lasting Trauma 7 (2014), http://righttoheal.org/wp-content/uploads/2014/05/RtH-January-2014-Report.pdf [http://perma.cc/E9AA-EPJL].

[44] Al-Darraji, supra note 18 (quoting and hosting a translation of The Org. of Women’s Freedom In Iraq, U.S. Army Base Transforms the Town of Hawijah (30 miles south of Kirkuk) into a Crisis Zone: Hundreds of Paralyzed Children and Teenagers with Cancer).

[60] Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, Dec. 12, 1977, https://www.icrc.org/eng/assets/files/other/icrc_002_0321.pdf [https://perma.cc/KE3Q-ZVPB].

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